In an Order dated 16 January 2024, the President of the Court of First Instance in the proceedings before the Local Division Dusseldorf addressed an application for a change in the language of proceedings in a patent infringement case between Aarke AB, a Swedish company and SodaStream Industries Ltd., an Israeli company.
Aarke AB, an SME, requested, in English, to switch the language of proceedings from German to English as the patent was originally granted in English and to reduce costs associated with translations.
SodaStream Industries Ltd., which is part of PepsiCo. argued that the application is inadmissible as it was filed in English and further that, procedurally, it should be part of the Statement of Defence, rather than it being filed ahead of the filing of the Statement of Defence.
The President of the Court of First Instance ruled in favour of Aarke AB, declaring that the application was admissible. The President also clarified that a request for changing the language of proceedings can be made independently to the main pleadings and therefore granted the change of the language of proceedings to English. Had the court dismissed the application or accepted the argument that it should be filed with the Statement of Defence, the entire Statement of Defence would have to be filed in German, giving rise to some of the translation costs Aarke AB sought to avoid.
In making this decision, the court also acknowledged Aarke AB's SME status and the fact that changing the language of proceedings to English would be a foreign language challenge faced equally by both parties. The court moreover emphasised that, as provided by Rule 7.1 RoP, it is for the Court to decide on a case-by-case basis whether an application pursuant to Rule 323 RoP lodged in a different language is to be rejected or not. This decision highlights the willingness of the court to use flexibility inherent within the rules of procedure and importantly, confirms the views expressed by UPC judges at numerous hearings, meetings and conferences, that contrary to the trends shown in early filings, English ought to be the language of choice of UPC proceedings. Using English will dramatically expand the pool of judges to hear disputes – all UPC judges speak English but only a small proportion speak German to a sufficient level to be able to conduct proceedings without the need for expensive and burdensome translation.
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